Baise: EPA's water police: Coming to your farm?

I just returned from Germany and Poland and was startled to discover the regulatory control the European Union exercises over its farmers and agriculture.

This should not be a surprise, however, when a farmer has the EU paying one-half the cost of his tractor and/or farm equipment.

In eastern Germany, we were also regaled with stories about the old communist government ordering planting on days it was raining.

Unfortunately we are headed in the same direction here.

The EPA has just released a new definition of "Waters of the United States." Critics are calling this the biggest government land grab ever. Senator David Vitter, R-La., and a member of the Senate Environment and Public Works Committee said, "The…(proposed) rule may be one of the most significant private property grabs in U. S. history." Senator Murkowski, R-Alaska, claimed the EPA proposal "could result in serious collateral damage to our economy." She also said, "If EPA is not careful, this rule could effectively give the federal government control of nearly all of our state – and prove to be a showstopper for both traditional access and new development.

This quote may apply to most of the states of the Union, and not just Alaska. This EPA proposal, if promulgated, will give it zoning authority over land use.

Rep. Randy Neugebauer, R-Texas, claims the new rule is giving EPA permission to regulate anything from runoff ditches to stock ponds. "This Administration has decided that Washington knows best," says Neugebauer. Another Congressman declared, "If approved, this rule would allow the EPA to regulate virtually every body of water in the United States."

These are strong statements. I am going to examine this sweeping 370-page proposal in this and subsequent blogs. The fears expressed by Senators and Congressmen are well founded. One article has suggested that EPA's water police are coming to your farm, business and backyard.

The EPA document has nine sections dealing with the proposed definition of "Waters of the United States." In addition, the agency provides background on its scientific review which I wrote about on January 27, 2014. EPA uses another 300-page document to discuss "Connectivity." This EPA Connectivity report was issued in September, 2013 and describes how isolated bodies of water, isolated streams and isolated wetlands relate to larger bodies of water.

The language which concerns so many groups in agriculture is that EPA believes that all bodies of water are somehow physically, chemically and biologically connected to downstream Waters of the United States.

What is "Significant Nexus?" Two words are critical to EPA's power grab over your private property if it has water on it. The terms are "Significant Nexus". EPA says there can be a significant nexus with "other waters". EPA declares that "other waters," which I will discuss in a subsequent blog, can have a relationship to each other and connections downstream which affect the chemical, physical or biological integrity of traditional navigable waters. EPA says "The existence of the connection, a nexus, does not by itself establish that it is a 'significant nexus'."

EPA claims it will review water on your property or coming from your property and undertake a case-specific analysis to determine whether the gradient of your property and its water creates a relationship that "…constitutes a significant nexus."

EPA, in a chilling statement, says "Functions of waters that might demonstrate a significant nexus includes sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood waters, runoff storage, export of organic matter, export of food resources, and provision of aquatic habitat. A hydrologic connection is not necessary to establish a significant nexus."

EPA, with this statement, can come after virtually any water on your property.

EPA claims it is merely clarifying the definition of Waters of the United States. As I told members of the Iowa and Missouri Farm Bureaus this past week, such an assertion is simply not believable and is nonsense.

As one article said, the EPA water police are coming to your farm, ranch or timber operation. If this rule is promulgated, it will be unclear who has more control over its farmers…the European Union or the U.S. Environmental Protection Agency.

About the Author:

Gary H. Baise

| Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC, specializing in agricultural and environmental issues in state and federal court. He also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Association of Wheat Growers, National Sorghum Producers and counsel to the American Soybean Association. Baise is actively involved in a number of agricultural associations, including the Farm Foundation. He also formerly served on the USDA's Agricultural Air Quality Task Force. He received a Bachelor of Science degree from Western Illinois University and a Juris Doctor degree from Indiana University.
In the Legal Outlook blog, Baise will shed light on legal issues facing agriculture. Additionally, he will include his impressions on what these issues mean to producers. He is a contributor to Farm Futures magazine, where his comments, through the Defending Agriculture column, are initially published.